Reply Received on 06 Jun 2014
MODEF/R/2014/60822 dated 29 Apr 2014 - Subject: Second SoC submitted by Service HQ
MODEF/R/2014/60846 dated 01 May 2014 – Subject: Draft of Corrigenda to MoD letter of 27.12.2012
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Government of India
Ministry of Defence
New Delhi, the 23rd May 2014
Shri S Y Savur,
141 Jal Vayu Towers,
Indira Nagar (PO),
Bangalore - 560038
Subject: Seeking Information under RTI Act-2005
Reference is invited to MoD ID No. MODEF/R/2014 (60822)/D (RTI) dated 02.05.2014 forwarding your on-line RTI application dated 29.4.2014 and MoD ID No. MODEF/R/2014 (60846) /D (RTI) dated 5.5.2014 forwarding your on-line RTI application dated 1.5.2014 on the above subject.
2. With reference to your application dated 29.4.2014, the photocopies of notings from MoD File No. 34 (10)/2013/D (Pay/Services) (Note No. 53 to 60) containing the opinion of LA (Defence) is forwarded herewith (10 pages).
3. With reference to your application dated 1.5.2014, the draft corrigendum to MoD letter dated 27.12.2012 sent by MoD to MoF in the Rank Pay case is forwarded herewith (3 pages).
4. The Appellate Authority is Shri Pradeep Kumar, Director (AG-I), Ministry of Defence, Room No. 102, Sena Bhawan, New Delhi.
Under Secretary & CPIO
Encl: as above
Extracts from file No. 34 (10)/2013-D (Pay/Services)
The following line of action is proposed: -
(i) MoD may forward the entire case file to the Ld Attorney General through LA (Def) and Ministry of Law and Justice seeking his second legal opinion on the issues raised by the Chairman, COSC and CAS in the rank pay case. The file already contains the detailed comments of CGDA and views of Def (Fin) and MoF.
(ii) It may also be appraised to the Ld AG that a Contempt Petition has been filed in the case by Shri N. K. Nair & Anr and Retd. Defence Officers Association in the Hon’ble Supreme Court. The Hon’ble Apex Court has given direction to issue Notice returnable within ten weeks. The case is next listed for hearing on 17.02.2014. MoD is in the process of defending the case after receipt of the Notice and the Ld Solicitor General will appear in the Hon’ble Supreme Court on behalf of the alleged contemnors. The issues raised by the Chairman, COSC and CAS also form part of the Contempt Petition and will have to be suitably replied in the Counter Affidavit.
2. Submitted for the kind perusal and approval of RM please.
JS(O/N) & E
AS (A) Sd/---------31/xii
Defence Secretary Sd/----------31/xii
(R. K. Mathur)
Def Secy in meeting Sd/---------1/1/2014 SO to Def Secy
JS (E) Sd/----------- 2/1
Dir AG I
LA (Def) may take necessary action please immediately as per the approval of RM on note 53 ante.
LA (Def) Ph 23012739 (P/5)
The procedure does not provide for seeking second legal opinion of same law officer on issues already examined and opined. It is urged that in view of Para (b) r.w. para (d) of guidelines issued by the MoD, IT & MIS Division, DCCMU, a precise statement of case may be prepared, along with necessary annexure, by raising the new legal issues, if any, specifically, for seeking the legal opinion of Ld A.G.
In case the earlier opinion of the Ld A. G. covers the issues on which re-consideration is desired, then it may clearly be indicated in the statement of case, that as to on which cogent grounds re-consideration is necessary.
(M S Tariq)
Legal Adviser (Defence)
Ministry of Defence, New Delhi
May see, pl Sd/------------7/1/2014
With reference to the observation of LA (Def) vide Note 56 ante, it is stated that Note 52 ante of US/P/S and Note 53 ante of Dir, AGI are self-explanatory and approval of RM has been taken on Note 53 ante in pursuance of which the second legal opinion of Ld AG is solicited in the matter and he has to be apprised of the contempt petition in the rank pay case.
LA (Defence) is requested to take necessary action immediately as per the decision of RM pl.
US/P/S Sd/------------ 07/01/2014
-59- Ph No. 23012739
The matter has been perused and discussed with JS & LA (Shri Inder Kumar). There appears to be no fresh legal issue on which the legal opinion of the Ld AG may be sought. It may be pointed out that based on inputs provided by the Services and MoD by way of a “Statement of Case’ that was prepared by the JS (E) Sh Sameer Kumar Khare, a detailed “Statement of Case” was sent to the Ld AG for his legal opinion along with the background note. Both are placed in folder 1/3. The main four issues on which the legal opinion of Ld AG was sought are as follows: -
I. i) Applicability of order of the Apex Court dt 4.9.2012 with effect from 1.1.1986 with consequential benefits,
ii) Re-fixation of pay on promotions subsequent to 1.1.1986
II Revision of minimum pay for each rank
III Adjustment of top of pay scales in IV CPC, and
IV Applicability of provisions in V CPC ad consequentially in VI CPC in the spirit of the judgment of the Apex Court dt 4.9.2012.
The Ld AG vide his legal opinion dt 3.9.2013 said that benefit of the rank pay must be granted to all the officers whose pay has been fixed after deducting the same, whether as on 1.1.1986 or after 1.1.1986.
In relation to the second issue the Ld AG has said that when the officers pay is revised in implementation of the court’s orders, the minimum of the pay scale does not come in the way because if the pay has to be fixed at the stage higher than minimum, the same can be done. There is no need to revise the minimum, if as stated by the CGDA, it has been fixed on another basis.
While answering issue No.3, the Ld AG has opined that ceiling on pay arises out of para 6 (b) (c) of instructions dt 26.05.1987 did not arise nor was considered in Maj Dhanapalan’s case. The only issue decided by the Kerala High Court and consequentially the Supreme Court is whether rank pay is to be deducted at the time of fixing pay in the integrated scale in terms of para 6 (a) (ii). Ceiling fixed under para 6 (c) is not a subject matter of these judgments.
On fourth and final issue the Ld AG has stated that the Government needs to implement the underlying principle laid down in Maj Dhanapalan’s case i.e. rank pay cannot be deducted at the time of fixing pay in the revised scale. It is immaterial that in Maj Dhanapalan’s case only the 4th pay commission was involved. The principle of law laid down is that rank pay cannot be deducted by fixing pay in the integrated scale. Since rank pay has been deducted at the time of fixing pay in subsequent pay commissions, the same would definitely have to be corrected. The officers covered by 5th and 6th pay commissions cannot be expected to approach courts for orders in the same terms.
It appears from the noting portions that Armed Forces do agree with the opinion of the Ld AG on the issue No. I & IV but did not agree with issue No. II & III i.e. revision/enhancement of minimum pay for each rank in the integrated pay scale prescribed vide SAI/SNI/SAFI 1/S/1987 and upward revision of maximum/top of integrated pay scale provided under SAI/SNI/SAFI 1/S/1987. So the Services have again sought to justify these issues and have stated that legal question involved here is whether Rank Pay was deducted from the minimum and Top of the pay scale for affected ranks in the integrated scale prescribed by IV CPC.
The CGDA states that the minimum pay for each rank in the integrated scale of pay was recommended by IV CPC. The minima were not fixed after deduction of tank pay. It further said that integrated scale for Armed Forces officers is devised considering total service span of 23 years from Lt to Brig/equivalent. The officers are promoted on completion of requisite number of years of service and while refixing their pay, the corresponding rank pay of the appropriate rank is also paid. The Defence (Fin) said that the issue being not connected with the court order, no comments have been offered. But Min of Finance agreed with the views of the office of the CGDA on this issue.
In relation to the issue of revising the top of the integrated scale, the Services now contend that the top of the scale Rs 5100 should also be increased to remove the effect of deduction of rank pay. They have drawn equivalence between Brig (Army) and DIG (Police) to draw pay comparison. As DIG (Police) got Rs 6150 basic pay, the Brigadiers pay in the integrated scale was Rs 4950 with an additional amount of rank pay of Rs 1200. The Services point out that now with no deduction of rank pay, Sr Cols and Brigs would not be able to get full pay fixation benefit (20% of emoluments), as in their case the revised emoluments go beyond the top of the integrated scale from day one. Thus proposed to adjust the top of the scale suitable to restore the original span of integrated scale of 29 years as recommended by pay commission.
In connection with the above, the CGDA has pointed out that in order to benefit such officers an element of personal pay was projected in the instant case to Min of Finance, but it was not agreed to by the Ministry. The Defence (Fin) stated that para 6 (j) of the relevant service instructions deals with the protection of emoluments already drawn by an officer as on 31.12.1985. The difference in emoluments can be covered by the grant of personal pay absorbable in future increases of pay. Thus MoD (Fin) agreed with Min of Finance for not agreeing to grant personal pay. Moreover, there is no court order directing the change of integrated pay scale. In case the demand of changing the integrated pay scale is met, the pay scale of next senior officers will get burst, disturbing the horizontal and vertical relativity pay scales on the Services side, para-military and civilian side as well.
In the light of the above noted factual and legal position, the issue No. II & III on which the Ld AG has already tendered his legal opinion dt 03.09.2013 [May pl see F/B] may not be referred again to him. If approved, we may return the file to MoD.
May kindly see.
M S Tariq
Legal Adviser (Defence)
Ministry of Defence, New Delhi
JS & LA (Sh Inder Kumar) Pl discuss LA (Def)
Discussed on 13/2/14 Sd/-----------------13/2/14
JS (O/N) & E Pl examine quickly and discuss Sd/----- 13/2
Dir (AG I) -60-
May like to peruse at this stage
JS (E) Urgent Sd/----------18/2
Dir (AG I) Sd/--------18/2
US (P/S) Sd/--- 19/2
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Government of India
Ministry of Defence
New Delhi, Dated March 2014
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Sub: Implementation of Hon’ble Supreme Court Order dt 4th September, 2012 in IA No. 9 of 2010 in Transfer Petition (C) No. 56 of 2007 Union of India and Others versus N. K. Nair & others, etc
I am directed to refer to this Ministry Order No. 34 (6)/2012-D(Pay/Services) dt 27th December 2012 regarding implementation of subject Order of the Hon’ble Supreme Court and to state that as per legal opinion tendered by the Learned Attorney General of India, the sanction of the Government is hereby accorded to modify the provisions of this Ministry’s ibid order as under:
i) The existing para 6 will be renumbered 6 (A) ad would stand revised as under:
In the twelfth line after the word ‘(integrated scale),’ the words “as on 1.1.1986” will be substituted by “w.e.f. 1.1.1986.”
ii) A new para 6 (B) will be added as follows:
6 (B) Sanction of the Government is hereby also communicated to modify certain provisions of Special Army Instructions No. 2/S/1998 dated 19th December 1997 and the corresponding Special Instructions pertaining to Navy and Air Force both bearing Nos. 2/S/1998 dated 19th December 1997, in so far as they relate deduction of Rank Pay for fixation of revised pay of the concerned officers of Army, Navy and Air Force in the revised scale w.e.f. 01.10.1996. The modifications/amendments in SAI 2/S/1998 and corresponding instructions for Air Force and Navy are as under:
(a) In para 5 (a) (i) the words ‘and rank pay wherever applicable in the pre-revised scale’ would stand deleted.
(b) The existing para 5 (a) (ii) would read as under:
ii) The officer’s pay will be fixed in the revised scale at the stage next stage above the amount thus computed.
(c) Para 5 (d) (i) the words ‘including rank pay’ would be deleted.
(d) In para 5 (e) (i) the words ‘including rank pay’ would be deleted.
(e) In para 5 (e) (ii) the words ‘including rank pay’ would be deleted.
(f) In para 5 (e) (iii) the words ‘including rank pay’ would be deleted.
(g) In para 5 (e) (iv) the words ‘including rank pay’ would be deleted.
(iii) A new para 6 (C) will also be added in ibid MoD letter as follows:
6 (C) The pay fixation formula w.e.f.1.1.2006 as laid down in SAI 2/S/2008 and the corresponding Special Instructions applicable to Air Force and Navy has also been examined in light of the legal opinion tendered by the Learned Attorney General. In the [existing (struck off by pen)] methodology of pay fixation of revised pay w.e.f 1.1.2006, Rank Pay has not bee deducted and [struck off words as was being done w.e.f 1.1.1986 and 1.1.1996. In fact, the Rank Pay] has been taken into account along with Basic Pay in the pre-revised scale to arrive at the new, revised pay in the relevant pay band w.e.f.1.1.2006 whereupon Grade Pay has also been given, and [inserted by hand] an additional component of Military Service Pay (MSP) at Rs 6000 p.m. is also admissible to the Armed Forces officers up to the rank of Brigadier/eq. As such, the pay fixation formula w.e.f.1.1.2006 for the relevant officers of the Armed Forces as laid down in the relevant instructions does not require any change.”
(iv) Existing Para 7 will be replaced with the following:
7 Except to the extent modifications as stated in MoD letter No. 34(6)/2012-D (Pay/Services) dated 27.12.2012 and as amended vide this letter, the aforesaid Army Instructions 1/S/87 dated 11.6.1987 and corresponding Navy and Air Force instructions both bearing No. 1/S/87 dated 11.06.1987 and 26.05.1987 respectively as amended from time to time and Special Army Instructions No. 2/S/98 of 19.12.1997 and the corresponding Special Instructions in case of Navy and Air Force both bearing No. 2/S/98 and dated 19.12.1997 as amended from time to time, there shall be no change in the provisions of the aforesaid Special Army, Navy and Air Force Instructions of 1987 and 1997 pertaining to the implementation of the recommendations of the 4th and 5th Central Pay Commission respectively. For the position brought out in para 6 (C) above, there is no change required to be made in respect of pay fixation methodology w.e.f.1.1.2006.
(v) Existing para 8 will be replaced with the following:
8 As the aforesaid Order of the Hon’ble Supreme Court passed on 04.09.2012 read with their earlier order dated 08.03.2010, has upheld the order of the Hon’ble Kerala High Court passed on 05.10.1998 is for refixation of pay without deduction of Rank Pay w.e.f. 01.01.1986 [words struck out and 01.01.1996], and as this sanction is in compliance with this judicial pronouncements, [words hereafter in italics inserted by hand] and the legal opinion of the Ld Attorney General on this issue it is [word struck out again] clarified that there shall be no change in respect of Special Instructions of Army, Navy and Air Force issued on 11.10.2008 (Army) ad 18.10.2008 (Navy and Air Force) for implementation of the recommendations of the 6th Central Pay Commission, except to the extent of the need for re-fixation of pay w.e.f. 01.01.2006, necessitated due to re-fixation of pay w.e.f. 1.1.1986 and 1.1.1996 in terms of these orders.
(vi) All other provisions of the MoD letter No. 34 (6)/2012-D (Pay/Services) dated 27.12.2012 remain unchanged.
2. This issues with the concurrence of Ministry of Defence (Finance) vide their Dy No………. dated…………..and Ministry of Finance (Department of Expenditure vide their Dy No………….dated …………
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